Wednesday, February 10, 2010

Framing the Foreshore and Seabed Issue

The foreshore and seabed issue has popped up in the media a few times over the last week. The Prime Minister and Hone Harawira both commented on the issue at Waitangi. There has also been media comment relating to an analysis of the issue in a PR firm’s newsletter and a set of proposals that appear to have formed part of the discussions between iwi leaders and the Government, which were leaked last week.

Let’s consider the analysis in the widely-circulated newsletter first. We should remember that this analysis is not a neutral and objective assessment of the issue. It has been produced by a PR company that is run by Matthew Hooton, someone who is well-known for his close connections with the National Party. So we should be aware that this newsletter has been produced with the intention of influencing the way this issue is framed. We can certainly take with a grain of salt the commentary about how the National Party and the media shouldn’t be held accountable for the spread of misinformation, fear, and prejudice in the wake of the Ngāti Apa decision. Those parties need to take responsibility for their own actions, just as the previous Government must take responsibility for passing the Foreshore and Seabed Act. And the suggestion that Don Brash’s personal road to Damascus experience is due to the fact that he now has a better understanding of the issue, and is not instead due to changing political imperatives, is absurd. But that assertion does assist with framing the issue as one that is confined to matters of process. The problem is that there is more to the foreshore and seabed issue than that.

The denial of due process is certainly one of the most outrageous aspects of the Foreshore and Seabed Act. But simply returning these matters to be addressed by the courts on a case by case basis will not necessarily provide the best, or a complete, resolution of all the relevant issues. The Waitangi Tribunal found that maintaining the position that existed following the Ngāti Apa decision would certainly have been more consistent with Treaty principles than the policy that underlies the Foreshore and Seabed Act. But the Tribunal also recognised that such an approach would inevitably leave some uncertainty around rights in the foreshore and seabed while cases worked their way through the courts. The Tribunal did not consider this to be overly problematic, but the Crown argued that this was the primary reason why it considered that it was necessary to enact the foreshore and seabed legislation. The Tribunal also noted the strong preference of the claimants in that inquiry was for a negotiated solution, similar to the Sealord deal in relation to customary commercial fishing rights, and suggested that this would be the only approach that was fully compliant with Treaty principles:

In putting forward the options, we note up front that full compliance with the Treaty would require the Crown to negotiate with Maori and obtain their agreement to a settlement, as happened with respect to commercial fishing and Rotorua lakes. All the other options involve a compromise between Treaty principles, claimant preferences, and what the Government might regard as practicable. They are, to borrow Professor Mutu’s phrase, ‘least worst’ options.

The Ministerial Review Panel also noted that, along with the cost and uncertainty of leaving these issues to be resolved on a case by case basis a simple application of common law rules to Māori customary interests seems unlikely to assist with wider objectives in relation to the management of the foreshore and seabed:

But there would be disadvantages. It would mean that rights in the foreshore and seabed would have to be litigated on a case by casebasis over a long period of time. Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. There is also the question of what legal rules should govern this process. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Māori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.

If the problems with the Foreshore and Seabed Act are conceptualized as being only about due process, then it is certain that many problematic issues will remain unresolved.

While Matthew Hooton’s newsletter seems to have been adopted by the media as an unbiased explanation of the issues, the leaked proposals have been characterized as part of some Machiavellian scheme. It seems as though the impression we are supposed to draw is that the extremists are trying to force these totally unacceptable ideas on the agenda. But, I can’t quite work out why these suggestions are so unpalatable. They are quite expressly premised on meeting, not only the interests of iwi and hapū, but also the Crown’s political imperatives. The proposals are based on the idea that the replacement framework needs to:

Be consistent with iwi/hapū world view that places taonga status of foreshore and seabed at the centre (i.e. environmental sustainability is the priority)

Provide for tikanga to be an operative source of the law;

Allow for flexibility for iwi/hapū specific aspirations/realities to be reflected;

Increase the decision making role and autonomy of iwi and hapū;

Not ‘look and feel’ like the 2004 Act;

Satisfy the Crown’s political imperatives.

The leaked document identifies the Crown’s political imperatives as being:

Rebalancing interests (a recognition that the 2004 Act struck an inequitable balance which should be redressed);

Environmental sustainability

Integration with existing statutory matrix

Efficiency (not increasing overheads, costs or red tape)

Appropriate economic development

Certainty and clarity

Protection of existing rights/interests (including access)

Now, I’m not saying that the proposals in the leaked document necessarily provide the most effective mechanism to address these interests, nor would I suggest that the current process for developing an alternative to the Foreshore and Seabed Act is ideal in the way that it seems to be centered around the Iwi Leadership Group’s concerns. But, I am interested in the way that this document has been written off by the Government (and the media). If the leaked document does not accurately reflect the Government’s interests, I’d like to know exactly what the Government’s interests really are. And if the leaked document has captured the Government’s interests accurately, I’d like to know why the Government considers that its interests are not met by these proposals.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review